A NEGOTIATOR’S WAKE UP CALL

Every once in a while a case comes along that is just loaded with teaching moments for both sides and the Authority’s newest decision is one of them for negotiators on either side of the table. In this case the parties had to go to the FSIP to resolve their bargaining dispute, which the Panel did on May 9 via a final and binding order. The union then refused to sign or implement the agreement alleging that the following ground rule language entitled it to delay signing for at least 14 days, ”At the completion of negotiations, the Employer will assemble a legible form of the completed Agreement within five (5) working days for both parties to review. Execution will take place no later than fourteen (14) days after completion of negotiations.” On May 14th the union also announced that it was going to submit the contract for ratification after that review. The agency tried to convince the union to sign immediately, but gave up on July 9, when it submitted the contract for agency head review. The agency head disapproved the agreement on July 11. The bargaining agency then filed a ULP charge against the union for a refusal to sign the agreement.

Believe it or not the parties made at least a half-dozen mistakes in those few lines of facts we included above. Can you seasoned negotiators list them before reading on?

#1- The Meeting of the Minds Moment – For purposes of § 7114(c), the date an agreement is executed is normally the date the local parties signed it. But when (as here) one or both of the negotiating parties has not signed the agreement, determining the date on which the agency head review period starts is more elusive. The Authority has concluded that when the Panel issues a final and binding order typically no further action is necessary and the parties are not required to separately execute the agreement via a signature in order to trigger the 7114(c) review period. The exception would be if the union was entitled to ratify those portions of the agreement not imposed by the Panel or the parties had agreed to an additional substantive step. (See AFSCME v.FLRA, No.04-1021 (D.C.Cir. 2005) and NTEU and FDIC, 39 FLRA 848 (1991)) For example, perhaps they agreed that once the Panel issued its order each party had an opportunity to reopen any previously agreed issue that was directly impacted by the Panel order. The ALJ rejected the argument that the ground rule language meant that the all the initialed articles and the final one that was imposed by FSIP were merely “working documents,” permitting either side to demand a substantive modification if appropriate before signing. In fact, he called that an absurdity concluding the 14 days were merely for find clerical errors in the final documents which could be done after execution.

#2- Ratification – The union began bargaining with the statutory right to ratify the agreement all but the one article that was imposed by the Panel via a final and binding order. It lost that right, however, by waiting until negotiations were over before it informed management that it wished to ratify. Because the agreement was final on May 9 with issuance of the Panel order, delaying until May 14 to announce ratification was too late.

The judge acknowledged that the full Authority has not drawn a bright line as to when the union must declare its intention to ratify. But once again the Authority chose not to give practitioners an easy to apply rule in favor of letting this ALJ’s ruling based on the unique facts of this case stand. Consequently, unions would be wise to declare an intent to ratify not just before negotiations conclude, but also early on in the ground rules discussion or at least simultaneous with signing the ground rules, submitting proposals, or meeting for the first day of bargaining.

#3- Agency Head Review Delay – The agreement was finalized when the Panel issued its order on May 9. By waiting two months to ask for agency head review, the bargaining agency forfeited the agency head’s right to review. Review must be done within 30 days of the agreement becoming final, which is the execution date. (Don’t confuse the execution date with the implementation or effective date. Thanks to the 30 day delay for agency head review they are never the same.) It does not matter that the delay was due to the agency negotiators’ well-intentioned efforts to settle the dispute over signing the agreement. Good intentions do not matter when the statute sets the deadline.

#4- Agency Head Review Obsession – Agency heads should think seriously about their obsession with asserting their dominance through with a disapproval decision. The process is an anachronism, like dials on telephones and typewriters. By disapproving this agreement, the agency head undermined the ability of the lower-level agency negotiators to unilaterally implement the agreement without the union’s signature. Unilateral implementation would have allowed them to impose changes contained in the new contract that likely would have increased pressure on the union to reach a deal, e.g., reductions in its official time. The agency head or bargaining agency still would have been able to declare those clauses the agency head disapproved unenforceable, delaying their implementation until the union got a ruling from the FLRA. The only downside is that the FLRA would have used the slightly tougher standard of “abrogate at all” rather than “excessive interference” to decide whether the contract clause violated the management right’s clause. Alleged violations of outside statutes or government-wide regulations would have been judged under the same standard.

Although we can’t point to any case law supporting this, we suspect that the law would have allowed the bargaining agency to implement the new contract without the clauses objectionable to the agency head so long as it told the union which clauses were non-enforceable.

#5- ULP Burden – If we were the agency, we would not have filed the ULP for a few of reasons. First, that made the agency the complainant and the complainant has the burden of proof. Second, it could have simply implemented the terms and conditions described in the initialed articles and Panel order by notifying the union in advance that it intended to implement on a date certain. One party’s refusal to execute (or recognize de facto execution of) an agreement generally authorizes the other party to unilaterally implement. Doing so would have forced the union to file the complaint and take on the burden of proof. Third, according to the ALJ the new contract imposed a reduction in the union’s official time allotment. If the agency implemented unilaterally in July, it could have imposed the reduction. That would have forced the union to convince a judge to reinstate the formula of the prior contract and order reimbursement for time expended that should have been official but was not. By filing the ULP, the agency reversed the process, forcing it to ask the ALJ’s permission to retroactively implement the new official time formula and apparently seek reimbursement from the union. That is a tall order and the judge refused to do so.

#6 – Return to the Panel – While the ULP route was obviously a potentially successful one, would not the easier path for the agency have been to return to the bargaining able, give the union a proposal containing modified language to fix the disapproved provisions, and after a few days of discussion hustle right back to the Panel to ask for it to impose the entire contract—removing any right the union thought it might have to demand substantive changes during the 14 day post-Panel period. That would have given it a clear path to unilaterally implement the new Panel order once it was issued and approved. It might have added four to six months to the process, but going the ULP route resulted in a dispute that began in 2012 not getting resolved until 2016.

One final word about bargaining. Almost everyone thinks they can bargain based on such hard evidence as they have bargained good prices for cars they have purchased and regularly get good discounts at the local farmers’ market. We hope this case shows the need to know the technical rules of the process, not just how to parry across a table. We once lost a case at the Panel and were doomed until the very arrogant and cocky management negotiator called not just to gloat but also to rub it in by offering to add some provisions to the Panel’s order to fill in some procedural gaps we pointed out to the Panel that it thankfully ignored. Knowing the rules, we immediately accepted his offer, asked him to send an e-mail with his proposed additional words, and promptly sent him a response and mild counter when we got it. Once we had a written record of that exchange, we informed him and his boss that they had just reopened negotiations, essentially voided the final and binding nature of the Panel order and would have to start bargaining all over. To our surprise and delight the boss terminated the guy, ending his federal career. You have to go pretty deep into the case law to find support for the idea that post-Panel actions can reopen bargaining, but in our case it totally turned the tables on the agency forcing it to pay about tens time in travel and per diem bargaining costs than the Panel originally imposed. The FDIC case, cited above, highlighted that technicality as the ALJ in this case mentioned.

Good luck to all you negotiators and happy bargaining. If you are looking for a book that focuses like a laser on the 500 or so technicalities of bargaining that FLRA has set via its decisions check out COLLECTIVE BARGAINING LAW FOR THE FEDERAL SECTOR. It is six years old now, but not much has changed and no one has produced a more recent text focused solely on bargaining technicalities.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.